Sentencing Law and Policy

Sharp uptick in view that US criminal justice system is not tough enough in latest Gallup polling

As reported in this recent Gallup release, a "58% majority of Americans think the U.S. criminal justice system is not tough enough in its handling of crime, marking a sharp reversal from the prior reading in 2020 when a record-low 41% said the same.  Another 26% of U.S. adults currently say the system is about right, while 14% think it is too tough."  Here is more:

The latest readings on this measure, from Gallup’s Oct. 2-23 annual Crime survey, mark the sixth time the question has been asked since 1992. The three readings between 1992 and 2003 found solid majorities of Americans, ranging from 65% to 83%, saying the criminal justice system was not tough enough on crime. Yet, the next time the question was asked, in 2016, less than half of U.S. adults thought the system needed to be tougher and nearly as many said it was about right....

Majorities of Republicans and Republican-leaning independents have consistently called for the criminal justice system to be tougher across all years, but the percentages of Democrats and Democratic-leaning independents holding the same opinion have ranged from 25% to 62%. Democrats' view that the system is too tough has been between 6% and 35%.

In the current survey, three-quarters of Republicans think the criminal justice system is not tough enough, 16% say it is about right, and 7% believe it is too tough. Democrats are more divided in their views, with a 42% plurality saying it is not tough enough, 35% about right and 20% too tough....

The latest poll also finds Americans are evenly divided in their views of whether people accused of committing crimes are treated fairly by the criminal justice system.  Equal 49% shares of U.S. adults say such suspects are treated very or somewhat fairly and very or somewhat unfairly.  This marks a significant shift in opinion compared with prior readings in 2000 and 2003, when two-thirds of Americans said criminal suspects were treated at least somewhat fairly.

While majorities of Republicans (55%) and White adults (53%) believe that criminal suspects are treated fairly, majorities of Democrats (55%) and people of color (56%) think they are treated unfairly.  The percentages of Republicans and Democrats who say suspects receive fair treatment are both 18 percentage points lower than in 2003. Similarly, White adults (by 15 points) and people of color (by 18 points) are less likely now than in 2003 to believe suspects are treated fairly.

When asked which should be the greater priority for the U.S. criminal justice system today, 55% of Americans favor strengthening law and order through more police and greater enforcement of the laws, while 42% prefer reducing bias against minorities by reforming court and police practices.  When this question was last asked in 2016, just under half of Americans favored strengthening law and order.

People of color are more likely to say reducing bias against minorities (52%) should be prioritized over strengthening law and order (44%), while White adults tilt the opposite way, with 60% favoring strengthening law and order and 38% favoring reducing bias. Meanwhile, 71% of Democrats prefer reducing bias against minorities, and Republicans strongly favor strengthening law and order (82%).

Although a majority of Americans say it should be a priority, strengthening law enforcement is not viewed as a surefire way to lower the U.S. crime rate.  Rather, nearly two-thirds of Americans think it would be more effective to put money and effort toward addressing social and economic problems such as drug addiction, homelessness and mental health, while 35% favor bolstering law enforcement.  Those views are essentially unchanged from 2020 when the question was last asked.

Relatedly, the Gallup folks also report here that "Sixty-three percent of Americans describe the crime problem in the U.S. as either extremely or very serious, up from 54% when last measured in 2021 and the highest in Gallup’s trend." Here is more:

The prior high of 60% was recorded in the initial 2000 reading, as well as in 2010 and 2016. Meanwhile, far fewer, 17%, say the crime problem in their local area is extremely or very serious, but this is also up from 2021 and the highest in the trend by one point over 2014’s 16%....

Public perceptions of the national and local crime problems have been worsening since 2020, when 51% thought the U.S. crime problem was extremely or very serious, and 10% said the same of the local crime problem.

Bureau of Justice Statistics releases "Capital Punishment, 2021 – Statistical Tables"

This morning the Justice Department's Bureau of Justice Statistics released this new report with notable national data on the administration of the death penalty in the United States through the end of 2021.  As I have noted in prior posts, though BJS is often the provider of the best available data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have much more up-to-date and much more detailed data on capital punishment issues.  Still, this new BJS report provides notable and clear statistical snapshots about the death penalty in the United States, and the document sets out these initial "Key Findings":

• During 2021, the number of prisoners under sentence of death declined for the 21st consecutive year (figure 1) (See Status of the death penalty in 2021.)
• A total of 16 prisoners were received under sentence of death in 2021, one more than was reported in 2020 (figure 2).
• Twenty states and the Federal Bureau of Prisons (BOP) removed a total of 84 prisoners from under sentence of death by means other than execution in 2021 (table 5).
• Among jurisdictions with prisoners under sentence of death at yearend 2021, 19 states and the BOP reported a decrease in the number of prisoners held under sentence of death, 8 states reported no change, and no states reported an increase in the number of prisoners held under sentence of death. Four states held no prisoners under sentence of death during 2021.
• The largest declines in the number of prisoners under sentence of death in 2021 occurred in California (down 14 prisoners) and Florida (down 11).
• Almost all (98%) prisoners under sentence of death were male (table 6).
• Among prisoners under sentence of death at yearend 2021 with a known ethnicity, about 16% were Hispanic.
• At yearend 2021, 1,353 (57%) prisoners under sentence of death were white and 969 (41%) were black (figure 3).
• At yearend 2021, 14 states held 50 female prisoners under sentence of death, one fewer than was reported in 2020 (table 7).
• Eighteen states and the BOP held 336 Hispanic prisoners under sentence of death at yearend 2021 (table 8).
• Among prisoners under sentence of death on December 31, 2021 with a known criminal history, twothirds (68%) had a prior felony conviction (table 9).
• Prisoners under sentence of death on December 31, 2021 had been on death row for an average of 20.2 years (table 10).
• Fifteen states and the BOP reported 45 prisoners whose convictions or sentences were vacated or overturned during 2021 (table 11).
• Prisoners executed during 2021 had been on death row for an average of 19.4 years (table 12).
• Between 1977 and yearend 2021, 34 states and the federal government executed 1,540 prisoners (table 13).
• Between 1930, when the federal government began collecting annual execution statistics, and yearend 2021, a total of 5,393 persons were executed under civil authority (table 13, figure 4).

"Best Practices: Report on Improving Veterans’ Incarceration and Reentry in Florida"

Though I have missed Veterans Day by almost a week, I am still glad that I did not entirely miss this new report from the Florida Policy Project that has the title of this post. Here are some passages from the start of the report:

Efforts have been made to limit veterans' exposure to incarceration.  While these efforts may be diverting some veterans from prison, many veterans are still incarcerated in Florida and will eventually return to their communities. Understanding how to improve their incarceration experience and lower barriers to reentry will ensure that Florida's veterans have access to the services they earned and return to their communities better than when they left them. This report describes the problems Florida's incarcerated veterans face and offers examples of programs that could be implemented to help reduce recidivism and improve reentry....

Justice involved veterans have garnered increased attention in recent years. Several practices have been deployed to help divert veterans from incarceration.  The Department of Veterans' Affairs (VA) Veterans Justice Outreach (VJO) program and the increased use of Veterans' Treatment Courts have helped respond to the needs of justice-involved veterans while maintaining accountability for criminal activity.  Despite these efforts, many veterans find themselves incarcerated in prisons around the country.  Although national estimates suggest that over 96,000 veterans are incarcerated in state prisons in the United States (accounting for about 8% of all people incarcerated in state prisons) many states underestimate their incarcerated veteran population.  For example, based on data from inmate self-identification, California estimated their incarcerated veteran population to be approximately 2.7% of inmates.  After accessing VA data, they found that 7.7% of their incarcerated population qualified as veterans — making them eligible for numerous federal benefits.

According to data from the Florida Department of Corrections, as of October 2023, 3,989 people in Florida prisons self-identified as veterans.  Over 99% of the 3,989 people are men (only 30 women in Florida prisons self-identified as veterans).  Accounting for approximately 5% of all people incarcerated in Florida prisons, as noted above, this proportion likely underestimates the true number of people incarcerated in Florida facilities who would qualify under federal statute as a veteran.  Difficulty in identifying veterans is exacerbated by the fact that Florida Statute and the United States Code differ in their definition of who qualifies as a veteran.

Though focused on Florida's prisons, the report closes with a helpful national review of "additional veteran-specific programs that Florida policymakers and correctional practitioners should consider implementing."  Anyone concerned about veterans involved with the criminal justice system should fine this report of interest, and a short form of the report here provides a useful overview.

Some of many prior related posts:

• Thinking about sentenced troops on Veterans Day
• How many vets, after serving to secure liberty, are now serving LWOP sentences?
• Should prior military service reduce a sentence?
• Are special jail facilities for veterans (and other special populations) key to reducing recidivism?
• "Justice for Veterans: Does Theory Matter?" 
• How many states now require judges to consider military service and/or PTSD at sentencing? 
• "Military Veterans, Culpability, and Blame" 
• New Minnesota law provides for prison alternatives for veterans involved in lower-level offenses 
• Eager to honor our veterans caught up in our nation's massive criminal justice systems
• Making the case for criminal justice reform as a way to honor those who served on Veterans Day
• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 
• Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems 
• CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing" 

Alabama and Texas both complete executions

As reported in these two AP article, two death sentences were carried out this evening:

"Alabama inmate executed for the shooting death of man in 1993 robbery":

An Alabama inmate convicted of killing a man during a 1993 robbery when he was a teenager was executed Thursday by lethal injection. Casey McWhorter, 49, was pronounced dead at 6:56 p.m. at a southwest Alabama prison, authorities said. McWhorter was convicted of capital murder and sentenced to death for his role in the robbery and shooting death of Edward Lee Williams, 34, on Feb. 18, 1993.

Prosecutors said McWhorter, who was three months past his 18th birthday at the time of the killing, conspired with two younger teenagers, including Williams’ 15-year-old son, to steal money and other items from Williams’ home and then kill him. The jury that convicted McWhorter recommended a death sentence by a vote of 10-2, which a judge, who had the final decision, imposed, according to court records. The younger teens — Edward Lee Williams Jr. and Daniel Miner, who was 16 — were sentenced to life in prison, according to court records.

"Texas man executed for 2001 killing of 5-year-old girl abducted from a store":

A Texas man convicted of strangling a 5-year-old girl who was taken from a Walmart store nearly 22 years ago and burning her body was executed Thursday evening.

David Renteria, 53, was pronounced dead at 7:11 p.m. CST following an injection at the state penitentiary in Huntsville for the killing of Alexandra Flores. Renteria prayed, sang and asked for forgiveness before his execution.

Coincidentally, a year ago today, November 16, 2022, was the last time there were two executions completed in two states on the same day in the US.  It was Arizona and Texas last year.

Applying Range, federal judge rules 922(g)(1) violates Second Amendment as applied to person with old DUI conviction

Over at Reason, Jacob Sullum has this effective account of yet another federal district court ruling that a federal criminal gun prohibition violates the Second Amendment.  Here is how Sullum's discussion starts (with links from the original):

The federal ban on gun possession by people with certain kinds of criminal records is often described as applying to "felons," but that shorthand is misleading.  The provision, 18 USC 922(g)(1), actually covers anyone convicted of "a crime punishable by imprisonment for a term exceeding one year."  That is why Pennsylvania resident Edward A. Williams lost his right to own a gun after he was convicted of driving under the influence, a misdemeanor, in 2005.  Had Williams defied Section 922(g)(1) by possessing a firearm, he would have been committing a federal felony punishable by up to 15 years in prison.

That consequence violated Williams' Second Amendment rights, a federal judge ruled on Tuesday.  U.S. District Judge John Milton Younge's decision in Williams v. Garland tracks the logic of a June ruling by the U.S. Court of Appeals for the 3rd Circuit, which includes Pennsylvania. The latter case, Range v. Attorney General, involved a Pennsylvania man who likewise was convicted of a nonviolent misdemeanor: food stamp fraud. Both cases illustrate the breadth of this "prohibited person" category, which includes many Americans with no history of violence.

The full 11-page ruling in Williams v. Garland is available at this link.

Just some (of many) prior related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender
• Eighth Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition
• US District Court concludes Second Amendment requires dismissal of federal felon-in-possession prosecution 
• Are many district courts ordering Second Amendment briefing in felon-in-possession cases (and are charges and sentencings being impacted)? 
• Dissenting from denial of en banc review, Eighth Circuit judges make case that blanket felon disarmament violates the Second Amendment
• Federal court rules Second Amendment precludes felon-in-possession prosecution for defendant facing 15-year ACCA mandatory minimum

New Clean Slate Act signed into law in New York with an estimated five million criminal records to be sealed

As reported in this New York Times piece, "roughly two million people convicted of crimes in New York may be eligible to have their records sealed as part of a broad criminal justice initiative that was signed into law on Thursday by Gov. Kathy Hochul."  Here is more:

Under the so-called Clean Slate Act, people who complete their sentences and remain out of trouble for a set period — three years for misdemeanors, eight for eligible felonies — will have their convictions sealed.  The most serious crimes, including sex crimes, murder and most other class A felonies, will not be eligible for automatic sealing.

New York is now one of a dozen states that have enacted such laws, which are aimed at interrupting the cycle of recidivism by enabling formerly incarcerated people to access jobs and housing. The law will go into effect a year from now, though it will take three more years to clear the records of those currently waiting.

Ms. Hochul said that she was proud to sign the legislation, which she said would provide economic opportunities while protecting public safety. “The best crime-fighting tool is a good-paying job,” she said.

The bill’s signing is a victory for criminal justice advocates who spent years lobbying stakeholders on behalf of the measure. By the time it passed New York’s Democrat-dominated Legislature earlier this year, it boasted an impressive coalition of business, labor, government and advocacy groups who preached of its economic, moral and public safety benefits.

Indeed, one of the biggest ostensible hurdles was Ms. Hochul herself, who over her two years in power has split with progressives over some criminal justice measures, citing public safety concerns.  While Ms. Hochul was supportive of the general concept of the initiative, and included a scaled-back version in her legislative agenda last year, she expressed concern over the scope of the initial bill.

Ultimately, the governor was able to extract concessions from its sponsors before its passage, including an extended waiting period and liability protections for businesses that hire people who have criminal records.  Records will remain visible to law enforcement and court personnel, as well as certain sensitive employers.  Unlike previous iterations of the bill, the final version makes all class A felonies, except those related to drug possession, ineligible for sealing.

The concessions helped to quiet opposition, including from law enforcement groups.  While the major sheriffs', police and prosecutors’ associations have not backed the measure, they have refrained from publicly criticizing it.

An analysis from the Division of Criminal Justice Services showed that roughly 1 million felonies and up to 4 million misdemeanor convictions would be eligible for sealing....

Many Republicans still oppose the legislation, saying it may seal records that they believe ought to remain public.  They point to the existing process for sealing records, in which a judge approves each request.

Senate Minority Leader Robert Ortt, who represents the Niagara Falls area, said he was disappointed in Ms. Hochul’s decision and skeptical of the law’s projected economic benefits.  “I do not think this is going to solve the employee shortage that our employers are seeing here,” he said.  “We continue to pass legislation like this that is really geared toward those who have broken the law, the criminal class, and not those who might be victims,” he lamented.

"The Embarrassing Sixth Amendment"

The title of this post is the title of this new article authored by Andrea Roth now available via SSRN.  Here is its abstract:

In his 1989 essay “The Embarrassing Second Amendment,” Sanford Levinson suggested that left-leaning scholars avoid studying the Second Amendment because they are embarrassed that its text might mean what gun-rights proponents claim it means — an individual right to bear arms.   Levinson urged such scholars to better engage the text, both to model intellectual integrity and to avoid unnecessarily ceding the terms of a critical constitutional debate.

This Article makes a similar argument with respect to the right to counsel.  The Sixth Amendment guarantees the “the assistance of counsel” in “all criminal prosecutions.”  To be sure, the Supreme Court held in Scott v. Illinois (1979) that the right is not “fundamental” in state cases where a defendant is not sentenced to jail time, citing federalism and budget concerns.  Relying on Scott, courts routinely subject defendants to criminal conviction, fines, pretrial detention, and significant collateral consequences like deportation, all without a lawyer.  Yet Scott appears squarely at odds with the Sixth Amendment’s text.  To retain Scott, the Court would either have to concede that “all criminal prosecutions” should not be enforced as written, or apply the text only in federal court, not state court.  Either concession would be hard for the current Court to make, given its ostensible commitments to textualism and to “single-track incorporation.”

Why, then, have progressives not pushed harder to overturn Scott on text-based grounds?  This Article suggests they may be embarrassed by the argument’s implications, for three reasons.  First, many scholars assume that the Sixth Amendment, under a textualist or originalist lens, does not guarantee a right to appointed counsel for indigent defendants.  It follows that progressives must avoid critiquing Scott on textualist grounds to avoid jeopardizing the right to appointed counsel under Gideon.  Second, progressives might be wary that the Court would embrace “dual-track incorporation,” justifying the dilution of other rights in state court.  Third, progressives appear to increasingly believe that an expanded right to counsel, like other procedural rights, is unimportant or even counter-productive.  This Article rebuts each of these concerns in turn and ultimately argues — as did Professor Levinson in the Second Amendment context — that scholars and litigants should engage the text and follow it where it leads: a right to counsel in all criminal prosecutions.

Federal court rules Second Amendment precludes felon-in-possession prosecution for defendant facing 15-year ACCA mandatory minimum

I have not sought to keep track of all the on-going litigation in district courts over whether federal felon-in-possession prosecutions under 18 USC § 922(g)(1) are still constitutional after Bruen.  But this new story in the Chicago Tribune, headlined "Chicago judge rules federal statute barring felons from possessing guns is unconstitutional but says it’s a ‘close question’," seemed notable because it appears that a federal district judge in Chicago has concluded that it violated the Second Amendment to prosecute for gun possession someone who would qualify for the Armed Career Criminal Act's 15-year mandatory minimum federal prison term.  Here are some of the reported details:

As a five-time convicted felon, Glen Prince was facing a mandatory minimum 15 years behind bars when he was charged in federal court with being a felon in possession of a handgun stemming from an armed robbery on CTA train in 2021. Instead, Prince’s case was tossed out earlier this month by a federal judge who ruled the statute barring felons from possessing handguns is unconstitutional in light of a recent U.S. Supreme Court decision.

The ruling by U.S. District Judge Robert Gettleman is the first of its kind to come down in Chicago’s federal court and joins a host of other similar cases that have thrown the decades-old law into a sort of legal limbo as the issue works its way back to the high court. The implications are particularly large in Chicago, where there are hundreds of pending felon-with-firearm cases stemming largely from the U.S. attorney’s office efforts to throw federal law enforcement resources into the fight against the city’s relentless gun violence.

Gettleman’s Nov. 2 ruling in Prince’s case was immediately appealed by the U.S. attorney’s office. The 7th Circuit U.S. Court of Appeals has set a Dec. 19 deadline for prosecutors to file a brief, court records show. It contradicts a handful of recent rulings by other district judges here upholding the felon-with-firearm law, saying that Second Amendment protections on gun possession have traditionally applied only to “law-abiding citizens.”

On the national level, the U.S. Justice Department last month urged the Supreme Court to overturn a lower-court ruling in Philadelphia that the law violated the constitutional rights of a man who possessed a weapon after pleading guilty years earlier to food-stamp fraud. The Biden Administration argued in its petition that the ruling conflicts decisions from two other appeals courts upholding the ban and “opened the courthouse doors to an untold number of future challenges by other felons.”...

In his opinion throwing out the charge against Prince, Gettleman wrote that while the government has historically prohibited certain people from possessing guns, prosecutors had not met their burden “to prove that felons are excluded from ‘the people’ whose firearm possession is presumptively protected by the plain text of the Second Amendment.”

Gettleman said the blanket ban on felons having guns “imposes a far greater burden” on gun rights than other historical categorical exclusions, such as one during the Revolutionary War when “individuals who refused to declare a loyalty oath to the emerging government” were barred from having firearms. The judge also wrote the fact that modern guns are more deadly and violence is more prevalent in today’s society doesn’t “justify a different result.”

“This nation’s gun violence problem is devastating, but does not change this result under Bruen, which this court finds rests on the severity of (the felon-with-firearm law) rather than its categorical prohibition.” Gettleman did, however, note the issue was a “close question” in his mind, as “violence plagues our communities and that allowing those who potentially pose a threat to the orderly functioning of society to be armed is a dangerous precedent.”

Prince, 37, was ordered released from the Metropolitan Correctional Center the day after Gettleman’s decision — but he didn’t walk free, records show. Court records show Chicago police arrested him at the jail at 71 W. Van Buren St. on new charges filed in Cook County accusing him of being an armed habitual criminal. He’s now being held without bond in the Cook County Jail.

According to the charges filed in federal court, Prince was a suspect in the armed robbery of three men on a CTA train in September 2021. After following the usage of a Ventra card stolen during the robbery, police arrested Prince on Sept. 12, 2021, on a CTA train platform in the 200 block of South State Street. He was allegedly carrying a loaded 9mm Smith and Wesson handgun as well as a fully loaded magazine, cocaine, and the victims’ Ventra card. He was originally charged in Cook County with aggravated unlawful use of a weapon by a felon, but those charges were dropped by state prosecutors after the federal indictment was filed last year, records show.

Prince’s criminal history includes three other armed robbery convictions as well as 2014 conviction for aggravated battery to a police officer, court records show.... Prince’s federal case was among more than 600 similar cases filed by the U.S. attorney’s office over the past five years where investigations by Chicago police and other local law enforcement are later removed to U.S. District Court. At least 50 people have been charged in 2023 alone with violating the felon-with-firearm ban, court records show.

The reasons to charge a defendant in federal court vary, but prosecutors generally promote it as a tool to get the city’s most violent, repeat offenders off the street instead of putting them back into the Cook County justice system. The potential penalties also are typically much tougher. Not only does the federal charge of unlawful possession of a weapon by a felon carry a maximum 10-year prison sentence, defendants must serve 85% of their sentence, instead of being eligible for day-for-day credit in the state system. If a defendant, such as Prince, has previously been convicted of three or more violent felonies, federal prosecutors can seek an enhanced, mandatory minimum sentence of 15 years behind bars, or up to life.

UPDATE: The 22-page opinion in US v. Prince, No. 1:22-cr-00240 (N.D. Ill Nov. 02, 2023), is available at this link.

"Laffer’s Day in Court: The Revenue Effects of Criminal Justice Fees and Fines"

The title of this post is the title of this new article now available via SSRN authored by Samuel Norris and Evan Rose. Here is its abstract:

Many jurisdictions levy sizable fines and fees (legal financial obligations, or LFOs) on criminal defendants.  Proponents argue LFOs are a “tax on crime” that funds courts and provides deterrence; opponents argue they do neither.  We examine the fiscal implications of lowering LFOs. Incentives to default generate a “Laffer” curve with revenue eventually decreasing in LFOs.  Using detailed administrative data, however, we find few defendants demonstrably on the right-hand side of the curve. Those who are tend to be poor, Black, and charged with felonies. As a result, decreasing LFOs for the average defendant would come at substantial cost to governments.

New US Sentencing Commission releases new updated report on "Demographic Differences in Federal Sentencing"

The US Sentencing Commission this morning released this notable new research report titled "Demographic Differences in Federal Sentencing."  As noted in this 2020 post, the USSC has completed similar reports looking at federal sentencing outcomes and the way its advisory guidelines function about every five or six years since the Booker ruling, and this latest report is summarized on this USSC webpage in this way:

The Commission has studied the issue of demographic differences in sentencing throughout its history.  In four prior reports, studying various time periods, the Commission has examined whether differences in the length of federal sentences imposed on individuals were associated with demographic characteristics of those individuals. 

Based on continued interest in this issue and consistent with best practices, the Commission re-examined and refined the analytical methods used in its previous reports to better understand sentencing disparity in the federal courts. Using new analytical techniques and newly available data, this report examines federal sentencing practices in the five fiscal years after the 2017 report to determine if the differences observed in the Commission’s prior reports continued to persist. 

This report presents the results of that work, and furthers the Commission’s mandates to establish sentencing policies and practices that eliminate unwarranted sentencing disparities and to serve as a center for information on federal sentencing practices.

The USSC webpage also sets forth these "Key Findings":

Sentencing differences continued to exist across demographic groups when examining all sentences imposed during the five-year study period (fiscal years 2017-2021). These disparities were observed across demographic groups — both among males and females.

• Specifically, Black males received sentences 13.4 percent longer, and Hispanic males received sentences 11.2 percent longer, than White males.
• Hispanic females received sentences 27.8 percent longer than White females, while Other race females received sentences 10.0 percent shorter.

The sentencing differences in the data the Commission examined largely can be attributed to the initial decision of whether the sentence should include incarceration at all rather than to the length of the prison term once a decision to impose one has been made. In particular, the likelihood of receiving a probationary sentence varied substantially by gender and race.

• Black males were 23.4 percent less likely, and Hispanic males were 26.6 percent less likely, to receive a probationary sentence compared to White males.
• Similar trends were observed among females, with Black and Hispanic females less likely to receive a probation sentence than White females (11.2% percent less likely and 29.7% less likely, respectively).

The sentencing differences were less pronounced when the analyses focused solely on cases in which a sentence of imprisonment was imposed, which comprise 94 percent of all cases sentenced during the five-year study period.

• Focusing solely on these cases, Black males received lengths of incarceration 4.7 percent longer, and Hispanic male received lengths of incarceration 1.9 percent longer, than White males.
• There was little difference among females receiving a sentence of imprisonment. The only statistically significant difference in the length of imprisonment among females was among Hispanic females, who received lengths of incarceration 5.9 percent shorter than White females.

Differences in the length of imprisonment across demographic groups were concentrated among individuals who received relatively short sentences.

• Among individuals sentenced to 18 months or less incarceration, Black males received lengths of incarceration 6.8 percent longer than White males. The difference narrowed to 1.3 percent for individuals who received sentences of greater than 18 months to 60 months; but for sentences longer than 60 months, Black males received lengths of incarceration approximately one percent shorter than White males. Few differences were statistically significant when comparing sentences for females.

Across all analyses, females received sentences that were shorter, on average, than males.

• When examining all sentences imposed, females received sentences 29.2 percent shorter than males. Females of all races were 39.6 percent more likely to receive a probation sentence than males. When examining only sentences of incarceration, females received lengths of incarceration 11.3 percent shorter than males.

Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing

A lot of folks had a lot of interesting comments in response to my first post about the future sentencing of Sam Bankman-Fried following his conviction on all seven federal criminal counts brought against him at his first trial.  Since that post, I have seen a number of press pieces with various early takes on his sentencing (which is scheduled for March 2024 and, I would guess, will take place even later).  Here is a partial round up:

From CNBC, "Sam Bankman-Fried faces over 100 years in prison at sentencing. Experts weigh in on how much time he’ll actually get"

From CryptoSlate, "SBF will likely serve 25 years rather than max sentence, former DOJ prosecutor says"

From the Daily Mail, "Sam Bankman Fried, 31, likely faces 50 YEARS behind bars, legal expert believes: $10bn FTX crypto fraudster's crimes carry maximum of 115 years behind bars"

From Forbes, "Sam Bankman-Fried Faces 110-Year Max Sentence After FTX Trial — Here’s How Long Experts Think He’ll Be Behind Bars"

From the New York Times, "Sam Bankman-Fried Could Get 100 Years in Prison. What Is Fair?"

Because I do not trust my money in crypto, I am not sure I want to trust my sentencing predictions to CryptoSlate.  That said, and though I am never inclined to place any actual bets on any actual legal proceedings, I do think 25 years may serve as a reasonable over/under for Judge Lewis Kaplan's coming sentencing decision.  

Prior related post:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 

Three Justices dissent from denial of cert in Illinois lawsuit over solitary confinement of mentally ill inmate

As mentioned in this prior post, this morning's new Supreme Court order list included a cert grant in a federal drug case and a lengthy dissent from the denial of cert in a state prison conditions case.  The cert grant in Diaz v. US could touch on a variety of interesting issues that might provide to divided the Justices in ways other than the now "usual" 6-3 divide.  But the state prison conditions case, Johnson v. Prentice, did produce the usual 6-3 split, with Justice Jackson authoring a lengthy dissent joined by Justices Sotomayor and Kagan.  Here is how this dissent starts:

This Court has long held that the test for evaluating an Eighth Amendment challenge to a prisoner’s conditions of confinement involves determining whether prison officials acted with “deliberate indifference” to a substantial risk to an inmate’s health or safety.  Estelle v. Gamble, 429 U. S. 97, 104 (1976).  With respect to the Eighth Amendment claim at issue in this case, the Court of Appeals for the Seventh Circuit affirmed the grant of summary judgment to prison officials without applying that well-established standard. Given this indisputable legal error, I would grant certiorari and summarily reverse.

According to the dissent, the case involved an "unusually severe" example of solitary confinement for Johnson.  But I am not too surprised from reading the dissent if this may have seemed to other Justices like an error-correction case, especially with the dissent suggesting the case only concerned whether there was "a genuine issue of material fact for the jury, under the facts and circumstances presented here, such that summary judgment was not appropriate."  I certainly would like to see the full Court take up some of the issues surrounding "severe" use of solitary confinement, but I am not sure this Johnson case would have been ideal for addressing important broader issues.

Supreme Court grants cert on federal drug case concerning expert testimony on defendant's knowledge

This morning brings this new Supreme Court order list that finally has something interesting for criminal justice fans.  Actually, there are two matters of interest, a cert grant in a federal drug case and a lengthy dissent from the denial of cert in a state prison conditions case.  In this post I will cover the cert grant and follow up with a separate post on the cert denial.

The cert grant comes in Diaz v. US, and John Elwood here at SCOTUSblog effectively summarized this case last week after it prompted a relist:

Delilah Diaz was stopped returning from Mexico to her home in California.  Officers were suspicious that Diaz’s window made a “crunching” noise when she rolled it down, so they searched the car and found nearly 28 kilograms of methamphetamine — worth almost $400,000 — in the door panels.  Diaz said that she had borrowed the car from her boyfriend and did not know about the drugs.  At her trial, prosecutors called a law-enforcement agent as an expert witness to testify that in most cases, couriers know they are transporting large quantities of drugs across the border and that traffickers rarely risk the potential of large losses on “blind mules” — couriers who are unaware what they’re carrying. Diaz was convicted.

On appeal, Diaz argued that the testimony was inconsistent with Federal Rule of Evidence 704(b), which states that “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged,” which is a question “for the trier of fact alone.” The U.S. Court of Appeals for the 9th Circuit affirmed Diaz’s conviction.  It concluded that Rule 704 only bars expert witnesses from stating an express opinion about whether a particular person knew they were committing a crime, not from stating general opinions about similar defendants and the likelihood of their culpability.

Diaz has now petitioned the Supreme Court for review.  She argues that that the testimony would have been thrown out in the U.S. Court of Appeals for the 5th Circuit, which has held that such testimony is inadmissible.  The 5th Circuit, she notes, includes Texas and, therefore, nearly all of the rest of the southern border, and she argues that the conflict between two border states’ appellate courts must be resolved. The government acknowledges a “disagreement between the Fifth Circuits and other circuits” but it contends that any disagreement “does not warrant this Court’s review.”  The 5th Circuit’s test, the government claims, is heavily “fact dependent.”  The government also argues that any error from admitting the agent’s testimony was harmless because the evidence of guilt in Diaz’s case was strong, because her story was “flimsy”: She didn’t know where her supposed boyfriend lived or his phone number, and although she claimed to dislike driving at night, she arrived at the border at 2 a.m. 

Here is how the petition for cert presents the question in Diaz:

Federal Rule of Evidence 704(b) provides: “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Fed. R. Evid. 704(b).

The question is: In a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — does Rule 704(b) permit a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters?

Former Prez Trump again talking up the death penalty as a way to address drug problems

Back in March 2018, as noted in this post, then Prez Donald Trump started talking up the idea of the death penalty for drug dealers as part of his stump speeches.  Way back then, I noted that constitutional questions about any such law would be sure to reach the Supreme Court and also that, at that time, there had not been any federal execution for well over a decade.  I also noted that the then-GOP-controlled Congress was working on a sentencing reform bill that could have been a vehicle for adding his Trump's capital sentencing idea.  

Fast forward five+ years, and now Prez-candidate Donald Trump is again talking up the idea of the death penalty for drug dealers as part of his stump speeches.   This Hill article, headlined "Trump doubles down on death penalty for drug dealers," explains:

Former President Trump doubled down on calling for the death penalty for drug dealers Saturday. “President Xi in China controls 1.4 billion people, with an iron hand, no drug problems, you know why they have no drug problems?” Trump said at a campaign event in New Hampshire Saturday. “Death penalty for the drug dealers.”

“You want to solve your drug problem, you have to institute a meaningful death penalty for… a drug dealer,” the former president continued.

This isn’t the first time the former president has called for the death penalty for drug dealers.  Back in June, Trump notably advocated for drug dealers getting the death penalty in a Fox News interview, despite the fact it would have applied to Alice Johnson, a woman whose sentence Trump commuted in 2018.

Though I consider Trump's comments to be more political posturing than policy proposal, I am struck by how the legal landscape has changed since I was commenting about these ideas back in March 2018.  With Justices Kennedy and Ginsburg replaced by (Trump-appointees) Justices Kavanaugh and Barrett, the current Supreme Court seems much more likely to uphold broader applications of the federal death penalty.  I make that statement in part because these Justices expressed no concerns about the 13 federal executions that were carried out in the final six months of Trump's presidency.  And, of course, the sentencing reform bill I was talking about in March 2018 became the FIRST STEP Act that was signed into law by Trump toward the very end of that year.  (Might Trump sometime start describing his "Death penalty for the drug dealers" proposal as a second step in sentencing reform?)     

Prior related posts from 2018:

• Prez Trump reportedly "would love to have a law to execute all drug dealers here in America"
• Prez Trump talks up "very strong" criminal penalties "with respect to the pushers and to the drug dealers" 
• Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed?